Can Consent to Police Search Be Given In the Form of a Gesture (Without Speaking) ?
In People v. Henderson, 142 Ill. 2d 258, 299, 568 N.E.2d 1234, 154 Ill. Dec. 785 (1990), the supreme court affirmed the trial court's finding of consent where police entered an apartment, identified themselves and asked if the defendant was home.
Defendant's mother answered the door, confirmed that defendant was inside and stepped back from the open door and pointed toward defendant's bedroom.
As demonstrated by Henderson, consent can be given in the form of either gestures or conduct as well as by the spoken word. Henderson, 142 Ill. 2d at 298-99;
People v. Gross, 166 Ill. App. 3d 413, 423-24, 519 N.E.2d 1043, 116 Ill. Dec. 828 (1988) (defendant who opened apartment door for police and then sat at kitchen table during their conversation, consented to police following him inside the apartment);
United States v. Cotnam, 88 F.3d 487 (7th Cir. 1996) (consent given where defendant gestured for officer to open the door to his hotel room with his key);
United States v. Rodriguez, 931 F. Supp. 907, 917 (D. Mass. 1996) (objective manifestation of consent to warrantless search may include gesture such as stepping away after opening door).